Kanhiya Lal Aggarwal vs Om Parkash Rajput and other

J.V. Gupta, J.—House No. 742, Sector 22-A, Chandigarh, was purchased by the plaintiffs on 9th June, 1975. At that time it was a single-storeyed building. They completed its firsthand second floor in July, 1978. The first floor was let out to the defendant-appellant (tenant) on 1st August, 1978 Since the premises in dispute were exempted from the purview of the East Punjab Urban Rent Restriction Act (as applicable to the Union Territory Chandigarh), the landlord served a notice dated 8th September, 1982, u/s 106 of the Transfer of Property Act, terminating the tenancy. He filed the present suit on 2nd December, 1982, seeking ejectment of the defendant-tenant from the 1st floor of the said house and also for the recovery of Rs. 2,500/- towards arrears of rent with effect from 1st March, 1982 and damages. It was pleaded by the plaintiffs that the suit was within five years of the construction of the demised premises, i.e., the 1st floor, and by virtue of the notification of exemption issued u/s 3 of the East Punjab Urban Rent Restriction Act, 1949 which is applicable to Chandigarh the same was exempt from the purview of the Rent Act and, therefore, the plaintiffs were entitled to eject the tenant after terminating the tenancy by a valid notice. The suit was contested, inter alia, on the ground that the civil suit, as such, was not maintainable as the premises were covered by the provisions of the Rent Act.

There was not much controversy on the other issues. The main issue contested before the trial Court was as to whether the demised premises were exempt for a period of five years or not. The learned trial Court found that the demised premises were exempt under the notification dated 11th June, 1982, read with notification dated 31.1.1973 and 24.9.1973, issued u/s 3 of the Act and, therefore, the Civil Court was competent to pass a decree of ejectment. Consequently, the plaintiffs'' suit for the recovery of arrears of rent and for ejectment was passed on 21st November, 1983. In appeal the learned Additional District Judge affirmed the said findings of the trial Court and, thus maintained the decree passed in favour of the plaintiffs. Dissatisfied with the same, the defendant-tenant has filed this second Appeal in this Court.

The facts are no more disputed. Admittedly, the first floor accommodation occupied by the defendant-tenant was constructed in the year 1978 and was separately let out to him on 1st August, 1978. The only question is whether the demised premises are exempt from the purview of the Rent Restriction Act or not in view of the three notifications issued by the Chandigarh Administration.

It is not disputed that the East Punjab Urban Rent Restriction Act was made applicable with effect from 4th November, 1972, to the Union Territory Chandigarh vide Act 54 of 1974, i.e., the East Punjab Urban Rent Restriction Act (Extension to Chandigarh) Act, 1974. In exercise of the powers conferred by sec. 3 of the Act, the Chief Commissioner published a notification dated 31st January, 1973, exempting the buildings referred to therein from the operation of the Act, which reads as under :--

No. 352-LD 73/602, dated January 31, 1973. In exercise of the powers conferred by section 3 of the East Punjab Urban Rent Restriction Act, 1949 (Punjab Act No. III of 1949), as applicable to the Union Territory of Chandigarh, the Chief Commissioner, Chandigarh, is pleased to direct that the provisions of the said Act shall not apply to buildings, constructed in the urban area of Chandigarh, for a period of five years with effect from the date the sewerage connection is granted in respect of such buildings by the competent authority under rule 112 of the Punjab Capital (Development and Regulation) Building Rules, 1952.

This was followed by another notification dated September 24, 1973, which is as follows :--

No. 2294-LD-73/3474.--In partial modification of Chandigarh Administration, Home. Department Notification No. 352-LD-73/602 dated the 31st January, 1973, the Chief Commissioner, Chandigarh, is pleased to direct that the period of five years'' exemption shall be computed as under :--

(a) Where sewerage connection can be given, from the date such connection is granted by the competent authority;

(b) Where sewerage connection cannot be granted, as for instance, in the case of booths, from the date electric connection is first given by the competent authority;

(c) In case not covered in categories (a) or (b) above from the date the building is actually occupied.

Again on June 11, 1982, another notification was issued as follows :--

No. L.D. 82/10.11--In partial modification of Chandigarh Administration, Home Department Notification No. 352-LD-73/602, dated the 31st January. 1973 read with Chandigarh Administration, Home Department Notification No 2294-LD-73/3474, dated the 14th September, 1973 and in exercise of the powers conferred by ejection 3 of the East Punjab Urban Rent Restriction Act, 1949 as applicable to the Union Territory of Chandigarh, the Chief Commissioner, Chandigarh, is pleased to direct that the period of 5 years, exemption shall be computed in the manner indicated below :

(a) Where sewerage connection can be given, from the date such connection is granted by the competent authority;

(b) Where sewerage connection cannot be granted, as for instance, in the case of booths, from the date electric connection is first given by the competent authority;

(c) Where sewerage connection has already been given and new building is constructed in addition to or over and above the existing building and has been separately let out, from the date new building is actually occupied;

(d) In cases not covered in categories above, from the date the building is actually occupied.

On September 24, 1974 the Chief Commissioner had also issued another notification which reads thus :

No. 3205-LD-74/3614. In exercise of the powers conferred by section 3 of the East Punjab Urban Rent Restriction Act, 1949, as applicable to the Union Territory of Chandigarh, the Chief Commissioner, Chandigarh is pleased to direct that the provisions of Section 13 of the said Act shall not apply to buildings, exempted from the provisions of the Act for a period of five years vide Chandigarh Administration Notification No. 352-LD-73/602, dated the 31st January, 1973, in respect of decrees passed by Civil Courts in suits for ejectment of tenants in possession of these buildings instituted by the landlords against such tenants during the period of exemption whether such decrees were or are passed during the period of exemption or at any time thereafter.

According to the learned counsel for the appellant, the instant case is covered under para (c) of the notification dated June 11, 1982 and since that para has been newly introduced for the first time, it has to apply prospectively and therefore, to only such new constructions over the existing buildings which are made after the said notification and since the building in dispute was constructed in the year 1978, the said notification could not be made applicable to the demised premises. In support of this contention, reference was made to the Supreme Court judgment reported as M/s Punjab Tin supply Co., Chandigarh etc. v. The Central Government and others 1983 (2) R.L.R. 681 and Lekh Raj, etc., etc., v. The Central Government 1983 (2) R.L.R. 681.

It was not disputed that the notification dated 11th June, 1982 was not an independent notification as such u/s 3 of the Act. To make the matter more explicit, it has been issued in partial modification of the earlier notifications issued on 31st January, 1973 and 24th September, 1973, providing how five years period has to be calculated. That being so, clause (c) of this notification will be applicable to the ''new building'' constructed after 31st January, 1973 and in respect of them, the period of five years shall run from the date of occupation. Therefore, it could not be successfully argued that the type of the buildings envisaged under clause (c) are exempted for a period of five years only if they are constructed after this notification of 1982. The matter stands concluded by the said Supreme Court judgment itself when it observed (in para 23 of the judgment) :

On a careful consideration of the question we feel that the benefit of the notification cannot be extended to buildings which were given the sewerage connection or electric connection or which were occupied, as the case may be, prior to January 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by sec. 13 of the Act. The notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied, as the case may be, on or after January 31, 1973.

In the circumstances, the demised premises stand exempted from the purview of the Rent Act in view of the notifications issued in the year 1973 as held by the Supreme Court.

Faced with this situation it was next contended on behalf of the defendant-appellant that the building was exempt from the purview of the Act for a period of five years from the date when it was separately let out to the defendant, i.e., from 1st August, 1978, which period according to the learned counsel has expired on 31st July. 1983, and, therefore, no decree for ejectment could be passed by the trial court on 21st November, 1983. In support of this contention, reference was made to the Supreme Court judgment reported as Vineet Kumar Vs. Mangal Sain Wadhera, After going through this judgment, I am of the considered view that the same has no applicability to the facts of the present case in view of the notification dated 24th September, 1974 reproduced earlier. The judgment of the Supreme Court which will govern the present case is Firm Amar Nath Basheshar Dass Vs. Tek Chand, where somewhat similar notification under the East Punjab Urban Rent Restriction Act was considered.

In Vineet Kumar''s case (supra), the Supreme Court was interpreting section 2 of the new U.P. Rent Act as reproduced in para 10 thereof. According to sub-section (2) of Section 2 of the said Act, "nothing in that Act shall apply to a building during the period of ten years from the date on which its construction is completed." While interpreting that, the Supreme Court observed (in para 13) that the moment a building becomes ten years old, to be reenkoned from the date of completion, new Rent Act will become applicable. Admittedly, the building was not ten years old on the date of the suit but during the pendency of the litigation it completed ten years. Then the question arises whether the new Rent Act will be attracted if the building completes ten years during the course of litigation". Such is not the position as regards the case in hand. Here vide notification dated 24th September, 1974 it was made abundantly clear that section 13 of the Act shall not apply to buildings exempt from the provisions of the Act for a period of five years vide notification dated 31st January, 1973 in respect of decrees passed by civil courts in suits for ejectment of tenants in possession of these buildings instituted by the landlords against such tenants during the period of exemption whether such decrees were or are passed during the period of exemption or any time thereafter. Thus, what was obligatory on the landlord was to file the suit within the exempted period of five years Once the suit was filed within that period, it was immaterial when the decree is passed because section 13 of the Act would not apply to such building in view of the notification dated 24th September, 1974. That being the Supreme Court judgment relied on by the learned counsel for the defendant-appellant is clearly distinguishable In fact, on the other hand, in this behalf the following observations of the Supreme Court (in para 4) in Firm Amar Nath Basheshar Ntah''s case (supra) are more pertinent;--

Under the above notification, the provisions of section 13 are made inapplicable to decrees in respect of buildings constructed during the years specified in (a) for a period of five years to be calculated from the dates of their completion provided during the said period suits had been instituted by the landlords against the tenants. There is no doubt from the facts set out above that the building in respect of which exemption from the application of section 13 is being claimed was completed in March, 1960 and a suit had also been filed on 14th January, 1963, before the expiry of the period of five years from that date.

Similarly the present suit was filed on 2nd December, 1982 within the exemption period of five years from 1st August, 1978 when the demised premises were let out to the defendant-appellant. Thus, this contention also fails.

No other point arises nor has been argued. Consequently, the appeal fails and is dismissed with costs.